Should people be fined for sleeping on park benches? Should they go to jail for begging?

All of us are subject to multiple rules and regulations governing how we can use public spaces, such as street corners, sidewalks and parks. As the French poet Anatole France said, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” Yet few of us are aware of many of rules governing public spaces since we are generally able to meet our daily needs and go about our daily activities without violating them.

The use of legislation, policing and the criminal justice system to respond to homelessness is referred to by researchers like Bill O’Grady and Stephen Gaetz as the criminalization of homelessness, defined as “the use of laws and practices to restrict the activities and movements of people who are homeless, often with the outcome being fines and/or incarceration” (O’Grady, Gaetz & Buccieri 2011, 7).

So what are some of the laws criminalizing homeless in Ontario? What activities are prohibited?

Ontario Safe Streets Act

At a press conference calling for the repeal of the Safe Streets Act, tickets received by homeless people were dumped on the table. Image from e-petition to sign the appeal.

When the Safe Streets Act(SSA) was introduced in Queen’s Park, MPP Gerry Martiniuk claimed it “has absolutely nothing to do with homelessness. It has nothing to do with panhandling”. Don’t be fooled. It has everything to do with homelessness and panhandling.

2.(2) “No person shall solicit [panhandle] in an aggressive manner”. An ‘aggressive manner’ is one that is “likely to cause a reasonable person to be concerned for his or her safety or security”, meaning what constitutes aggression is subjective.

Examples of aggression include threatening someone, obstructing their path, using abusive language, soliciting while under the influence of drugs or alcohol, or persisting in soliciting after someone has responded negatively.

3.(2) No person shall solicit a captive audience.

Examples of a ‘captive audience’ include a person waiting near an ATM, payphone, public toilet, taxi or public transit vehicle; a person in or on a public transit vehicle or parking lot; a person getting in, out of, on, or off a vehicle; and a person in or on a stopped, standing or parked vehicle.

While curbing aggressive or threatening panhandling is an understandable goal of this legislation, a review of SSA tickets between 2004 and 2010 showed on average only 20% were for aggressive solicitation, while 80% were for non-aggressive solicitation of a captive audience (O’Grady, Gaetz & Buccieri 2011, 10). In other words, this legislation is primarily used to crack down on panhandlers who are not threatening but whose presence in a downtown core (where one is always near an ATM, bus stand, pay phone, etc.) is unwanted.

4.(2) No person shall dispose of any of the following things in an outdoor public place: a used condom; a new or used hypodermic needle or syringe; broken glass.

Breaking these rules can result in a fine of up to $500 for a first offence or up to $1,000 and six months imprisonment for repeat offences. The usual fine is $60, but still unlikely to be an amount that can be paid by a panhandler. Over 11 years in Toronto, the total value of tickets issued is over four million dollars, of which 0.2% has been collected (O’Grady, Gaetz & Buccieri 2011, 10). Not surprisingly, ticketing the poorest members of society is not a lucrative endeavor.

Ontario Trespass to Property Act

The Trespass to Property Act prohibits entering and remaining on property “without the express permission of the occupier” 2.(1). People can be arrested without warrant for trespassing, and even if there is “reasonable and probable grounds” they were trespassing 9.(1) & 10.(1).

By definition, people who are homeless lack a home. They lack access to private space. Seeking spaces to sleep or even just hang out with friends can result in charges of trespassing or loitering.

Ontario Liquor Licence Act

The Liquor Licence Act regulates the “responsible use” of alcohol. As with the trespassing, its impacts are most keenly felt by those who lack private space.

31(2) No person shall have or consume liquor in any place other than,

(a) a residence;

(b) premises in respect of which a licence or permit is issued; or

(c) a private place as defined in the regulations.

31(4) No person shall be in an intoxicated condition,

(a) in a place to which the general public is invited or permitted access; or

(b) in any part of a residence that is used in common by persons occupying more than one dwelling in the residence

33 No person shall,(a) drink alcohol in a form that is not a liquor

Those violating these regulations can face fines of up to $100,000 and/or imprisonment of up to a year.

In addition to these provincial laws, cities create bylaws which penalize and exclude the poorest among us.

Ottawa Parks and Facilities Bylaw

The Parks and Facilities Bylaw regulates how public parks are used. These regulations are subjectively enforced and used to remove marginalized people from public spaces.

3.(1)a. People are not allowed in public parks between 11 p.m. and 5 a.m. (Some exceptions are allowed such as for special events.)

7.(1).g. People are not allowed to have in their possession any alcoholic beverages

7.(1).j. People are not allowed to camp in any park, or construct any tent or other structure. (Constructing a shelter from cardboard or garbage bags can be, and has been, interpreted as ‘camping’.)

4.(c). No person shall leave any food in the park that could be ‘used’ by wildlife

12.(1). No person shall engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behaviour in a park

12.(2). No person shall engage in any activity so as to interfere with or become a nuisance to the general public using the park

12A. No person shall smoke on outdoor municipal property

Ottawa Shopping Cart Bylaw

The Shopping Cart Bylaw prohibits the use of a shopping cart outside of premises of the business that owns the cart (4.2). Shopping carts found on city property can be impounded (8) and their contents disposed (13).

Only those without secure private space need to keep personal belongings in shopping carts.

This list of laws and regulations is not meant to be exhaustive. But it illustrates how the activities and even the presence of people living in extreme poverty is restricted and ultimately criminalized in Ontario.

Protesters at Dalhousie University on Dec. 19 demand the expulsion of ‘DDS Gentlemen ‘dentistry students (Yalitsa Riden/Twitter published in Toronto Sun)

A Facebook group called the Class of DDS 2015 Gentlemen might sound respectable. It was anything but. This was a site of sexually-explicit and violent discussions, many of which were directed against the female colleagues of those Dalhousie dentistry students who were part of this group.

One of the approaches being considered to further address the issue is a restorative justice (RJ) approach. In a RJ process, victims and offenders meet to discuss the offence and the impacts it has had on them. Importantly, victims get to express not only how they have been effected, but also how they think the offenders should be punished.

However, there are concerns that a restorative justice approach, in which the victims must be in the same room as the offenders, could re-victimize the women and trigger painful emotions.

Recently, a group of fourth-year female students who were the subject of some of the offensive Facebook posts wrote an open letter to the president of the Dalhousie saying that they are being forced by the university to accept a restorative justice approach. They have been told their choice is either this or a formal process in which they would be publicly named.

The fact that these women are so fearful of being publicly named is telling. Like any other victims of sexual assault and harassment, they know they could face backlash not only from the male students but also from the broader community. They know this scandal could follow them for years and damage their social and professional reputations. Yet they were victimized simply because they are women and are Dalhousie dentistry students. This fear of shaming needs to be addressed as much, if not more so, than the misogyny of the male students.

The restorative justice process is meant to empower victims, ensure that their voices are heard, and give them a supported, not shamed, position. But the women at Dalhousie say they feel silenced by the university and coerced to participate.

Victims should never be forced into a restorative justice approach, especially victims of sexual violence.

By failing to ensure that the victims actually want to participate in a restorative justice approach, the university is undermining its potential to empower the women directly impacted. There is a risk that this particular RJ process at Dalhousie could backfire. This could jeopardize future RJ processes in Canada since, across the country, people are watching most closely.

Susan Love is the CoSA Program Co-ordinator in Ottawa. The following text was circulated through the Smart Justice Network and reprinted with Susan’s permission in order to provide an update on funding to Circles of Support and Accountability (CoSA)

As many of you have heard, on February 21st CoSA sites across Canada were informed by Correctional Services Canada (CSC) that contracts would not be renewed after March 2014. After a vigorous letter campaign by CoSA providers and many supporters like you, to key stakeholders, in particular, Public Safety Minister Steven Blaney, CSC reversed their decision and contracts are now being drawn up for the new fiscal year. CSC was providing $650,000/yr spread across all CoSA sites in Canada – this is the amount they have agreed to reinstate. For us in Ottawa, this represents $12,000/yr. The funds from CSC, together with the 5 year funding 16 CoSA sites have been receiving from the National Crime Prevention Centre (NCPC), total $2.2M/yr. The NCPC funding concludes on September 30, 2014, with no option for renewal.

The funds from both CSC and NCPC have allowed CoSA sites to operate at capacity – including: hiring at least one full time and one part time staff and rent office space. This has allowed us to maximize the number of core members (former offenders) we can work with.

Although we are very pleased that CSC has agreed to reinstate their funding to us, we are concerned that with the loss of the NCPC funds, which represents approximately 80% of our budget at CoSA-Ottawa, we will be forced to reduce our operations considerably, directly affecting the number of core members we can safely manage. Although we have been vigorously seeking alternate sources of revenue, fundraising over $15,000 this year, we have found that our mandate does not align with the priorities of most private funding organizations. If you have any suggestions of possible funding sources, or would like to discuss this, we would love to hear from you.

Thank you so much for your support, concern and advocacy during this difficult time,
Susan Love
CoSA Program Coordinator

Circles of Support and Accountability (C0SA) is an internationally acclaimed program that helps prevent high-risk sex offenders from reoffending. Operating on the strength of 700 volunteers, this Canada-wide program currently supports over 150 sex offenders.

But Public Safety Canada has announced that it will cut close to 20% of CoSA’s funding (a loss of $656,000) as of the end of this month. In September, the program will lose even more of its funding.

Although results of an extensive evaluation won’t be available until September, existing research suggests that sexual recidivism rates for men who participate in CoSA are 80% lower compared to men who do not participate.

The following is an open letter to the Minister of Public Safety, the Hon. Steve Blaney

Honourable Steve Blaney
Minister of Public Safety
House of Commons
Ottawa, ON K1A 0A6

Dear Honourable Blaney,

I am writing to you to express my concern over the termination of funding to the Circles of Support and Accountability (C0SA), a program with a proven track record of helping high-risk sex offenders and lowering recidivism rates.

CoSA is internationally acclaimed for its success. It has projects across Canada and currently supports over 150 sex offenders. Because so much of the work is done by teams of committed volunteers, this program operates on an annual budget of only $2.2 million.

It is incomprehensible to me why the Department of Public Safety removes funding from such a successful, cost-effective operation. The government claims to want to protect Canadians and keep our streets safe. Yet you are taking away from a program that has been keeping Canadians safer by reducing sexual offences.

Your Department’s National Crime Prevention Centre has invested funds in evaluating the effectiveness of CoSA. The results are expected at the end of this year. Cutting funding to CoSA without waiting for the results of this study is a waste of the tax-payers’ money that funded it.

I respectfully ask that the Department of Public Safety reinstate funding for CoSA immediately and maintain funding until the results of the evaluation from the National Crime Prevention Centre are available. I trust that the evaluation will then demonstrate that CoSA deserves continued funding and support from your Department.

I look forward to your response on this matter.

Respectfully,
Anita Grace

cc: The Honourable Stephen Harper, Prime Minister
Don Head, Commissioner of the Correctional Service of Canada
Anne Kelly, Senior Deputy Commissioner of the Correctional Service of Canada
Therese Leblanc, Regional Deputy Commissioner of the Correctional Service of Canada
Johanne Vallee, Regional Deputy Commissioner of the Correctional Service of Canada
Lori MacDonald, Regional Deputy Commissioner of the Correctional Service of Canada
Brenda LePage, Regional Deputy Commissioner of the Correctional Service of Canada
Peter German, Regional Deputy Commissioner of the Correctional Service of Canada
Randall Garrison, NDP Public Safety Critic
Wayne Easter, Liberal Public Safety Critic
Elizabeth May, Leader of the Green Party

The Ottawa Carleton Detention Centre (OCDC) is a provincial jail that has become infamous for over-crowding and violence. Last year, the Ontario Ombudsman André Marin described the jail as exemplifying “everything that is wrong with a correctional institution.”

For example, in 2010 a brain-damaged prisoner had his head split open when a jail guard stomped on him as he lay face-down in his cell. In 2012, Julie Bilotta gave birth to her son on the floor of a segregated cell, ignored despite being in obvious pain and distress. These are just two stories that have made the news. But how often does the public hear about what happens behind the bars?

The Criminalization and Punishment Education Project (CPEP) is joint initiative between Carleton and Ottawa University which brings together students, professors, researchers and community members to engage in research and public education with regards to criminalization and punishment.

In December, they held a public forum to discuss conditions at the Innes Road jail. As lawyer Jason Gilbert said, “When you have cells with three people, with one sleeping on the floor, the jail is going to become a powder keg. And when you have people working in that environment, it’s going to lead to more incidents of violence, more aggression, more problems.”

Event organizer and Carleton sociology and criminology professor, Aaron Doyle said, “We need to move from people saying how terrible things are in there to actually doing something about it.”

CPEP continues to meet and discuss ways to push for change at OCDC. Anyone interested in participating, such as by sharing their own experiences or by assisting with research and public engagement, can find out more at the organization’s website.

In the last decade, the number of women being incarcerated in Canada is growing at a disturbingly high rate. Between 2003 and 2013, the female federal inmate population increased by more than 60%. For Aboriginal women, the incarceration rate has increased by over 87%.

The harsh government policies which are imprisoning so many women not only impacts those serving time behind bars. Their families suffer too since the majority of incarcerated women in Canada are mothers. Not only that, they are often the sole custodial parents and primary caregivers of their children. They were likely to have been living with their children prior to being incarcerated. Imagine the upheaval caused by the separation. What happens to the children? What happens to the mothers?

Sometimes there is something sensational that happens that draws public attention to the fact that we are incarcerating mothers. For example, in 2012, a young mother gave birth to her son alone in a jail cell of the Ottawa Carleton Detention Centre, while guards and nurses allegedly ignored her cries of pain.

But for the most part, we are ignorant about the majority of those who are incarcerated, and especially of the children they leave behind. If we knew more, would we still accept the regressive policies that will only see more women, more mothers, locked up?

If you are interested in knowing more, a recent book, Incarcerated Mothers: Oppression and Resistance, brings together several essays examining the experience of incarcerated mothers, both in Canada in abroad. Authors show that despite lip-service to mothers’ rights to have contact with their children while in custody, the lived experience is quite different.

A second coroner’s inquest is currently underway regarding the death of Ashley Smith, a 19-year old prisoner who choked herself to death in 2007 while prison guards watched. The facts which are coming to light during this inquest are deeply disturbing. This young woman with recognized mental-health problems was repeatedly assaulted and restrained through force and drugs. She spent the last year of her life in prolonged segregation and was transferred 17 times among nine institutions in five provinces. Her story is tragic. But unfortunately, it is not an isolated case.

Below is a letter based upon one drafted by Ottawa’s Criminalization and Punishment Education Project. I encourage anyone concerned about how individuals with mental health are mistreated within the Canadian criminal justice system to copy and adapt this letter and send it to the Prime Minister.

I am deeply concerned with our current criminal justice practices that penalize vulnerable people who, with the proper resources, would be better served in our communities. Where the death of Ashley Smith is a tragedy, it is unfortunately not an isolated incident. As Prime Minister of Canada, you are in the unique position with the combined authority and responsibility to act on behalf of and protect the people of this great country – today, I urge you take that step.

As I am sure you are aware, in his Annual Report to Mr Vic Toews, Minister of Public Safety, the Correctional Investigator of Canada estimates that one in 10 men and nearly one in three women in federal prisons have mental health concerns. According to a recent CBC news report, the Ottawa police respond to more than 4,000 calls involving the Mental Health Act each year, and they estimate that there are about 20 times more calls a year with a mental health component. The policing and subsequent criminalization of those with mental health concerns is an ongoing and increasing reality that will not be resolved by a crime control agenda.

Prisons are not treatment centres, nor are prison staff mental health professionals. Prison staff are trained to enforce prison policy, not to recognize mental health concerns in prisoner conduct. In prisons, mental health concerns are repeatedly viewed through a lens of security and risk, rather than treated as a health related issue. The result is that far too many prisoners, like Ashley, are responded to in punitive ways that only escalate health problems rather than resolve them. Punitive responses to mental illness directly interfere with and undermine the goal of correctional facilities to rehabilitate and reintegrate individuals serving custodial sentences.

I am writing to request that you take that first step to protect our most vulnerable so that people are treated for their health concerns in appropriately resourced settings and not in ‘corrective’ institutions where security takes precedence over all other concerns.

Under Section 29 of the Corrections and Conditional Release Act:

The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to
(a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; or
(b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations.

The protocol for the transfer of persons to appropriate facilities designed to address mental illness is designed to ensure that men and women with mental health concerns are receiving the right kind of care. Through your direction and leadership, the Correctional Service of Canada will be in a better position to utilize Section 29 and fulfill their mandate to ensure the safe rehabilitation and reintegration of individuals serving federal sentences.

Today, you have the authority and acumen to do what is right and just. I urge that you not let the practice of jailing our most vulnerable people in Canada continue. I urge that you use your leadership to protect others like Ashley Smith and to uphold the dignity and rights of everyone, so that I can live in a country where I am proud to be Canadian.

Sincerely,
Anita Grace

cc. Randall Garrison
Public Safety Critic

Elizabeth May
Leader of the Green Party of Canada

Tom Mulcair
Leader of the Official Opposition and New Democratic Party of Canada